Menendez Case Shows Possible Peril of Pre-Indictment Meetings (1)

A report of a remarkable and aggressive move by prosecutors in the federal bribery case against Senator Bob Menendez and his wife, Nadine, should raise serious concerns for all defense lawyers.

Bob Menendez was convicted on 16 counts of bribery, extortion, fraud, and obstruction of justice July 16 following a two-month trial in the US District Court for the Southern District of New York. Menendez and his lawyers said they will appeal. The trial for Nadine has been postponed as she undergoes cancer treatment.

The New York Times revealed before the verdict that some obstruction charges against the Democratic senator from New Jersey and his wife are based on a pre-indictment presentation their former lawyer made to prosecutors.

The government alleges that during that presentation, the lawyer—at the behest of his clients—made factual assertions that Menendez and his wife knew to be false, and they caused him to make these statements to obstruct and impede the government’s investigation.

The government introduced at trial pages from a PowerPoint presentation the defense lawyer gave during that meeting, and there was discussion of whether the lawyer would need to testify about the caveats and explanations he no doubt gave while presenting the PowerPoint.

While the government made clear it didn’t believe the lawyer engaged in any wrongdoing, the potential consequences for any defense counsel are scary, to say the least. The notion of being disqualified and, even worse, losing the privilege and being called as a witness against the client is a nightmare.

The episode suggests that defense lawyers should be extremely cautious when engaging in these meetings.

There are some key steps defense attorneys can take to mitigate risk of becoming a witness against their clients and walking the client into additional obstruction charges.

Resist client pressure where appropriate. Perhaps most important is the decision to have a meeting at all. Clients facing the prospect of federal felony charges are frequently clamoring for their lawyers to do something—anything—to head them off.

While most lawyers know that the oft-demanded opportunity for the client to explain themselves to the prosecutors is a bad idea, too often defense counsel give in to a client’s pressure.

Experienced defense counsel engage with government prosecutors early and often, and as the investigation progresses, they ought to know whether they have any likelihood of avoiding an indictment. Explore that question in a pre-meeting discussion with the government and assess whether there is any upside to the meeting.

Educate yourself before the meeting. If you are going to meet with the government, educate yourself thoroughly first. While it is usually impossible to fully learn the government’s case in the pre-indictment setting, often—if you ask—federal prosecutors will share key evidence that they want addressed. If you can’t address part of the government’s case without seeing that evidence, say so and consider canceling the meeting.

To the extent other targets have met with the government, thoroughly review their presentations and the government’s reactions to them, and share yours under a common interest/joint defense arrangement.

Test your client’s factual assertions and legal theories against those of the other putative defendants and ensure they line up—or that discrepancies can be explained—even if they aren’t perfectly aligned.

Federal Rule of Evidence 408 won’t protect you or your client. Most of us were taught to obtain an agreement from the government that pre-indictment meetings should be considered settlement discussions protected by Fed. R. Evid. 408.

That is still best practice, but be aware that while the rule generally prohibits admission of statements “made during compromise negotiations,” there is a specific carve-out that allows the court to admit such evidence for the purpose of “proving an effort to obstruct a criminal investigation or prosecution.”

Don’t source the presentation to your client and include as many caveats as possible. There is rarely a reason to tell the government where the facts you are asserting come from, and all effort should be made to avoid confirming that it comes from the client. Not only does this arguably breach the attorney-client privilege, but it makes it far easier for the government to lay the blame for any false facts made during the presentation on your client’s purported desire to obstruct.

Best practice is to begin by noting that you have done an extensive investigation, and while you are certain more information is out there, your current understanding of the facts is as follows.

Explain that you are open to revisiting everything you are telling the government if presented with contrary information, and the discussion is meant to explain to the government where you see the problems with a potential prosecution. Keep in mind, however, that there are no magic words that will always insulate against an obstruction charge.

Frame the presentation of facts correctly. Sometimes you can’t make an effective presentation without explaining what your client thought or felt at a particular time, and there are no documents or other witnesses from whom you could potentially source such information.

In such instances, do not frame the presentation as an affirmative statement of what your client says happened, or what your client thought or felt. Instead, if at all possible, present the “facts” as an alternative statement of what occurred as compared to the government’s theory that, if presented at trial, would undermine the government’s ability to prove its case beyond a reasonable doubt.

Have a goal and make it clear to the government. Are you making a pre-indictment pitch, or are you giving an attorney proffer? They are different animals and should be treated as such. The attorney proffer usually precedes a potential interview with the client, wherein the attorney previews the client’s potential statements for the government.

In that scenario, it is, of course, more difficult to use some of the pointers listed above—other techniques should be used to protect your client. But if you are actually giving a pre-indictment pitch, say so clearly and early. Tell the government your presentation isn’t a summary of what your client would say.

Get in front of the agent’s report. Determine in advance who will be present for the meeting and whether agents will be preparing a memorandum. If a report is going to be prepared, demand the agent include all caveats and statements you make. Too often agents only note the portions of a discussion they think are important.

This isn’t just about the government’s later ability to prove a potential obstruction charge, co-defendants may try to get access to such reports and use them against your client if your client ever becomes a government cooperator, as in United States v. Sudikoff.

As an additional precaution it is best to have your own reliable note-taker with you, preferably a paralegal or other non-lawyer who could testify later if necessary.

Don’t give up your work product. Don’t give the government a copy of your PowerPoint presentation or outline. Tell the government that your practice is to hold onto such material so that it is not floating around, but that you are happy to send over any case citations they need or revisit any part of the presentation.

If the government demands a written submission, turn your presentation and outline into a full-fledged letter that includes all of the necessary caveats.

The government’s practice in the Menendez case is hopefully an outlier, but it demonstrates that caution should be taken whenever engaging with the government and providing factual information on behalf of your client.

The case is US v. Menendez, S.D.N.Y., No. 23-490, verdict 7/16/24.

The second paragraph was updated to show Menendez intends to appeal. The fifth and seventh paragraphs have been updated to reflect that PowerPoint slides from the pre-indictment meeting were introduced to the jury.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Ariel Neuman is partner at Bird Marella and has led trial teams in federal and state courts.

Write for Us: Author Guidelines